Today’s news drew cheers from citizens’ groups opposed to drone testing in East County, but disappointment from military and economic development interests.

The sites chosen for drone testing are Alaska, New York, Nevada, North Dakota, Texas and Virginia. The FAA said factors considered included geography, climate, ground infrastructure location, research needs, airspace use, safety, aviation experience and risk.

“Residents in the test area who object should be given the opportunity to voice their concerns,” said Lisa Elkins

Lisa Elkinsis a Julian resident, an investigative journalist, and an activist in Back Country Voices, a citizens’ group that has opposed drone testing over rural East County. She hailed the decision as a victory, adding, “It just goes to show what a small group of citizens can accomplish when they make their voices heard.”

She added that area residents made many calls as well as sending emails and letters to officials voicing opposition. Elkins thanked media including East County Magazine for coverage of the issues, adding that she remains concerned over San Diego and California’s failures to pass any legislation to protect citizens’ privacy rights, as some other states have done.

The introduction of drones by the FAA into the national airspace creates “unavoidable privacy concerns which the FAA is required to address,”she noted. “This fight is far from over but it does give us a little breathing room to get legislation passed before drones are fully integrated throughout the U.S.”The group plans a celebration Saturday at Wynola Pizza.

Dave PattersonwithSan Diego Veterans for Peace also hailed the decision. “Currently there is no judicial oversight regarding the use of drone technology or the sensor information collected by drones,” he noted. “The prospect of our skies being opened to thousands of drones exacerbates that problem. Drones in our skies present a threat to our privacy, a risk from fire and provide a vehicle for the government’s surveillance programs that the residents of Southern California do not need.”

The veterans’ group plans to celebrate with a protest outside General Atomics, a drone manufacturer, in Poway at Stowe Drive and Scripps Poway Parkway on Thursday at 3:30 p.m.

But others decried the decision. “This is bad news for California. The economic impact would have been great,” said Larry Blumberg, executive director of the San Diego Military Advisory Council, UT San Diego reported. He noted that San Diego had a wide variety of geographic terrains and is home to Northrup Grumman and General Atomics, companies with drones that have been deployed in Afghanistan and Iraq.

Congressman Duncan Hunter (R-Alpine) had also supported the proposal. “San Diego has all the talent and capability to ensure any future use of unmanned platforms is safe and properly regulated” he told U-T San Diego today via e-mail, adding that “it’s hard to see how San Diego’s assets and resources did not put the region at the top of the list.”

In a letter to the Superior Court of California: Concerned citizens of San Diego County want to express our position regarding the privacy policies required by the Federal Aviation Administration’s proposed rule and made necessary by the FAA Modernization and Reform Act of 2012 (FMRA) for the County of San Diego, CA.

The introduction of Unmanned Aircraft Systems by the FAA into the National Airspace creates unavoidable privacy concerns which the FAA is required to address. We understand the FAA has considered the privacy problems and violations that have been raised by the UAS test site selection process. However, as one of the possible tests sites, the FAA and Congress has failed to address and pass the numerous bills proposed on privacy concerns. Therefore, we the citizens of San Diego County firmly object to the FAA’s consideration of Southern California being a testing site for UAS. – ‘Back Country Voices’

“We acknowledge drones have many useful purposes, but the FAA and legislature neglected to implement the necessary safety and privacy regulations that govern the way surveillance is used.There is still a lot of work to be done and we will do our level best to see that our civil liberties are protected,” said Lisa Elkins.

Drones have been mainly used by the military, but governments, businesses, farmers and others are making plans to join the market. Many universities are starting or expanding drone programs.

“These test sites will give us valuable information about how best to ensure the safe introduction of this advanced technology into our nation’s skies,”Transportation Secretary Anthony Foxx said in a statement.

The FAA said when selecting the sites it considered geography, climate, location of ground infrastructure, research needs, airspace use, aviation experience and risk.

In the case of Alaska, the FAA cited a diverse set of test site range locations in seven climatic zones. New York’s site at Griffiss International Airport will look into integrating drones into the congested northeast airspace.

The state of North Dakota already has committed $5 million to the venture and named a former state Air National Guard Commander as its test site director.

The FAA projects some 7,500 commercial drones could be aloft within five years of getting widespread access to American airspace.

The FAA estimatedthat30,000 droneswould be operating in U.S.airspace by 2020.

“Safety continues to be our first priority as we move forward with integrating unmanned systems into U.S. airspace,”FAA AdministratorMichael Huerta said in a statement. “We have successfully brought new technology into the nation’s aviation system for more than 50 years, and I have no doubt we will do the same with unmanned aircraft.”

An industry-commissioned study has predicted more than 70,000 jobs would develop in the first three years after Congress loosens drone restrictions on U.S. skies. The same study projects an average salary range for a drone pilot between $85,000 and $115,000.

Representatives from winning states were jubilant about the FAA announcement.

“This is wonderful news for Nevada that creates a huge opportunity for our economy,” said U.S. Sen. Harry Reid, D-Nevada.

The growing drone industry has critics among conservatives and liberals.

Giving drones greater access to U.S. skies moves the nation closer to “a surveillance society in which our every move is monitored, tracked, recorded and scrutinized by the authorities,”the American Civil Liberties Union declared in a report last December.

“A man’s ethical behavior should be based effectually on sympathy, education, and social ties; no religious basis is necessary. Man would indeed be in a poor way if he had to be restrained by fear of punishment and hope of reward after death.” – Albert Einstein

ISLAMABAD, Pakistan — Missiles fired overnight by an American drone killed a “suspected militant” and at least one child had been killed in the drone strike that also left two women injured in Faqirano village of Garmsir district.in northwestern Pakistan, a Pakistani intelligence official said on Friday. The incident drew strong criticism from a Pakistani opposition political party that is campaigning against the use of drones by the United States inside Pakistani territory.

The attack, which militant sources said killed the Haqqanis’ spiritual leader along with five others, was extremely unusual in that it was mounted outside Pakistan’s lawless tribal areas on the Afghan border.

The letter signed by PTI information secretary Shireen Mazari asked Hangu police to name CIA director John Brennan and a man they identified as the agency’s Islamabad station chief as suspects for murder and “waging war against Pakistan”.

The accusation was the latest move in Mr. Khan’s attempts to end the strikes, which, he says have jeopardized peace talks with Taliban insurgents. On Nov. 23, Mr. Khan led a big protest rally in Peshawar, the capital of Khyber-Pakhtunkwa province, which his political party rules. Since then, party workers have attempted to block NATO supplies in the province.

After the latest strike, Mr. Khan’s party officials renewed their criticism.

The “U.S. has nothing but contempt for Pakistan’s leadership,” said Shireen Mazari, the party’s central information secretary, calling the attack a “direct test of the will of the federal government”led by Prime Minister Nawaz Sharif.

U.S. General Apologizes After Afghan Drone Strike

KABUL, Afghanistan — The American military commander called President Hamid Karzai to apologize for a drone strike in southern Helmand Province, which the military conceded had killed and wounded civilians, a coalition official said on Friday.

Mr. Karzai had lashed out at his American allies after the Thursday attack, which came at a delicate moment when talks between Mr. Karzai and the United States over a long-term security agreement have reached an impasse. The Americans have told Mr. Karzai that unless he signs the agreement promptly, they will begin planning for a total withdrawal of American and NATO forces after the end of next year.

Gen. Joseph F. Dunford Jr., the American and NATO commander in Afghanistan, made a late-night phone call to President Karzai on Thursday after the president’s criticism became public. “He talked to President Karzai directly, expressed deep regrets for the incident and any civilian casualties, and promised to convene an immediate joint investigation to determine all the facts of what happened,” a coalition spokesman said, speaking on the condition of anonymity in line with official policy.

Mr. Karzai vowed this week, at the conclusion of a loya jirga, or grand council, that he would cancel the security agreement completely if there was even one more raid that killed civilians.

On Thursday, he said that in effect that moment had come. “For as long as such arbitrary acts and oppression of foreign forces continue, the security agreement with the United States will not be signed,” he said.

Mr. Karzai said he was adding a series of new conditions beyond what he had already negotiated and would not sign until those were satisfied. One of those new conditions was an immediate ban on any raids on Afghan homes. While the raids he was speaking of were primarily those carried out by Special Operations forces on the ground, his statement on Thursday made it clear that he now included drone strikes in his prohibition.

The coalition spokesman confirmed that two drone incidents had taken place in Helmand Province on Thursday. The first, in the Garmsir district, targeted an “insurgent commander” traveling on a motorcycle, but missed him and hit civilians. At least one child was killed, and two women were severely wounded. The targeted man fled on foot and was [allegedly] killed by a later drone strike. In the second, in the Nawa Barak Sai district nearby, another drone strike killed a single “insurgent target” and caused no civilian casualties, the spokesman said.

“This attack shows that American forces do not respect the lives and security of the people of Afghanistan and the loya jirga decision,” Mr. Karzai said. “For years, our people are being killed and their houses are being destroyed under the pretext of the war on terror.”

In a text message Friday morning, Aimal Faizi, the president’s spokesman, said, “It makes very difficult for the president to authorize the signing of B.S.A.,” referring to the bilateral security agreement.

After Mr. Karzai announced that he wanted to reopen negotiations on the agreement, President Obama’s national security adviser, Susan E. Rice, told him in a meeting here Monday that the United States had concluded negotiations and that, unless he changed his mind, Washington would begin planning for a total withdrawal.

The bilateral security agreement provides for a 10-year American military presence in Afghanistan, beginning in 2015. Ms. Rice also said that financial aid to Afghanistan’s security forces would be “imperiled without an agreement.”

Both sides have continued to hammer home their positions in public statements. Mr. Karzai told Radio Free Europe, in an interview on Tuesday, “If America wants to conclude a security agreement with us, America needs to respect the security of Afghan homes.”

In a public meeting in the city of Herat on Wednesday, the American ambassador, James B. Cunningham, reminded listeners that even Mr. Karzai’s handpicked loya jirga, composed of about 2,500 leaders from around the country, had urged him to sign the agreement quickly.

“Zero is not an option for us,”Mr. Cunningham said. “It could be a consequence of decisions that your government takes or doesn’t take.”

***

At least five civilians, including three children, were killed overnight in a NATO airstrike in eastern Afghanistan after they went hunting for birds with air guns, local officials said.

Networks of unmanned submarines. Subsonic cruise missiles with intercontinental range. Radios powered by decaying plutonium. Those are just a few of the technologies that the Pentagon‘s top scientific advisory panel wants to see in troops’ hands by 2030.

Most of the technology already exists in some form, largely experimental or conceptual. Networked unmanned submarines is not a new idea – defense companies will happily sell you one of a dozen unmanned underwater vehicles (UUVs), the key is to make them bigger, more advanced, and digitally tie them together instead of sending them off one at a time on short-range missions. Likewise, cruise missiles already exist, but tripling their range would allow a ship in Norfolk harbor to strike targets off Alaska. Plutonium-powered electronics are occasionally used by NASA to power spacecraft on long-distance missions, but nobody’s bothered to build them in quantity.

Moving troops faster is another crucial action where technology efforts are already ongoing. The Army is running the Future Vertical Lift program to find replacements for the aging traditional helicopters it uses now. Four contenders have stepped forward using more effective versions of TiltRotor like Bell’s V-280 and pusher-propellers like Sikorsky’s S-97.

A Defense Advanced Research Projects Agency (DARPA) program has begun to search for something brand-new, that can fly more efficiently than an aircraft and hover more efficiently than a helicopter, dramatically increasing range and speed. But even that’s not enough for the Defense Science Board. In a recently-released report (.pdf), panelists say that they want to build on those concepts, doubling the range and speed of those still-notional projects.

The DSB report focuses on how the U.S. military can operate in a world where it is no longer the top dog, and even small states have access to satellite reconnaissance and other advanced technologies. The Board suggests investments in four broad categories: countering a peer competitor (a not-so-subtle reference to China), anticipating surprises, improving the effectiveness of existing forces, and ‘superiority through cost-imposing strategies.’

In many ways the report focuses on the same sort of technologies envisioned during the Bush administration’s ‘revolution in military affairs’ era, envisioning a light, responsive, highly networked force backed by standoff and remote weapons. Longstanding mobility and long-range strike initiatives are “encouraged in the report,” which backs up current investment in the U.S. Army’s Future Vertical Lift and U.S. Air Force’sPrompt Global Strike programs, then calls for them to take a few steps further.

Crucially, the report pointedly mentions affordability as a key goal, a shift away from the traditional approach of building small numbers of highly advanced units. “Quantity,” the report says, paraphrasing Stalin,“has a quality all its own, especially when quantity can be coupled to enhanced operational flexibility.” The theme of affordability and proportionality runs through the report, noting that an adversary should pay more to counter the weapon than the weapon itself costs to use.

The U.S. has traditionally packed each generation of weaponry with the latest in technology, making them overly expensive and consequently built in ever-smaller numbers. The result is a highly capable but often limited force; during the Iraq invasion, the U.S. destroyed Iraqi tanks with ease but never found a counter to groups of people with AK47s. Airstrikes in Afghanistan see the use of advanced, high-performance tactical fighter aircraft firing million-plus dollar missiles at adversaries with rusted assault weapons. A plethora of sophisticated, multi-million dollar electronic jamming systems against remotely-activated explosive devices were largely countered when bombmakers began using simple pressure plates.

The technologies sought by the Defense Science Board (DSB) would be helpful in any conflict scenario, but the Board is clearly not anticipating an Iraq- or Afghanistan-style occupation. Technologies in at similar readiness levels more useful in those scenarios — personal heads-up displays, universal translators, networked drones airborne for years at a time, to name a few — are missing. Let’s hope we don’t end up in one of those occupation scenarios again. [Huh? Is the a “heads up?”]

After being in Congress for less than a month, Angus King, Independent Senator from Maine, has made a proposal to Congress regarding the U.S. drone program that has caught so much attention. Seeking to, in his opinion, add oversight to the drone program, Sen. King has proposed:

A judicial review process for targeted killings of Americans, similar to one used to review electronic surveillance of Americans.

The recent controversy surrounding the White Paper released by NBC outlining the U.S. drone program that can target American citizens abroad suspected of planning terrorist attacks. The program requires little in the way of concrete evidence to target such American citizens and has drawn criticism from across the political spectrum as being unconstitutional and immoral. Sen. King’s proposal attempts to address some of the criticisms of the program.

However, while one can accept the promise of a court to review the decisions of those selecting targets, referencing the Foreign Intelligence Surveillance Court (“FISC”) charged with reviewing warrant requests wiretaps to gather intelligence on foreign agents within the U.S. The court, together with the program, was highly controversial.

Between 2002-2011, out of the thousands of requests for warrants, the court rejected 11 of those requests. Moreover, according to an article by Julian Sanchez at Cato:

Americans are being told that there’s no need to worry about the broad surveillance programs authorized by the controversial FISA Amendments Act of 2008. Yet a report from Wired paints a more disturbing picture: National Security Agency surveillance enabled by the FAA was found “unreasonable under the Fourth Amendment” by the secretive Foreign Intelligence Surveillance Court “on at least one occasion.” The court also found that the government’s implementation of its authority under the statute had “circumvented the spirit of the law.”Despite these troubling rulings from a court notorious for its deference to intelligence agencies, Congress is so unconcerned that lawmakers don’t even want to know how many citizens have been caught up in the NSA’s vast and growing databases. (emphasis added).

In a separate article, Wired reported last year on two Democratic Senators seeking to have the FISC rulings declassified in order to review how the court interpreted sections of the Patriot Act. In a letter to Eric Holder, the Democratic Senators, Ron Wyden and Mark Udall, wrote:

We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act.

As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn’t know what its government thinks the law says.

The information sought by Sens. Wyden and Udall has not been declassified, and the rulings of the FISC remain out of the public’s sight. In a May, 2012 letter to Dianne Feinstein and Saxby Chambliss, the ACLU wrote:

There is little in the public record about how the government implements the FAA, but what little there is reveals substantial violations of the law. The New York Times reported in April 2009 that the National Security Agency “intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress” and “engaged in ‘overcollection’ of domestic communications of Americans” which was “significant and systemic.”Documents released in response to an ACLU Freedom of Information Act request confirmed recurring violations through March 2010, the last date for which reports were produced at the time of the FOIA release. Though heavily redacted, the documents suggest that the government is not always able to determine whether a target is a US person and therefore entitled to heightened protections. They also confirm violations of both the targeting and minimization procedures that are supposed to protect Americans’ privacy.

King believes that such a review court would work, as it would requrie the federal government to:

Demonstrate the person was an enemy combatant and there was some imminent threat—the kind of standards they have told us they impose on themselves.

Judicial oversight is good. But we are skeptical that a new secret court system is necessary.

King might actually believe that his proposal will offer actual “oversight”, though that expectation is a bit optimistic. A FISC court in this instance would, given the track record of the FISC rubber stamping warrant applications for wiretaps, likely offer no appropriate oversight or check on the government. Lastly, like the NSA wiretap program, the U.S. drone program operates outside the review not only of the American public but the public’s chosen representatives, and no secret court will change that.

IN the wake of the September 11, 2001 attacks on the World Trade Center, then President George W. Bush announced his War on Terror. His actions were authorized by one of the more controversial aspects of the Bush Administration; the Authorization to Authorization for the Use of Military Force (AUMF). The AUMF was passed with bi-partisan support in Congress, and signed into law by Bush one week after the attacks on the World Trade Center and Pentagon, and with it gave President Bush broad power to conduct U.S. foreign policy.

Perhaps most concerting about the AUMF is this section:

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. (emphasis added)

The two emphasized sections highlight the broad discretion afforded Bush. First, it was within his sole discretion to determine which nations, persons, or organizations are to be the target of U.S. military force. Second, “any future acts of international terrorism against the United States” again granted Bush broad discretion. Most notably, there is little definition of what constitutes international terrorism, and, more disconcertingly, there is not end date to this piece of legislation -”any future” is the only time frame used. In other words, one could read the AUMF has giving the office of the Presidency authorization to conduct the war on terror indefinitely.

Moreover, and perhaps most controversially, was the preemptive authority granted the President–”to prevent.” Preemptive war caused many legal issues, both internationally and domestically, for the Bush Administration. There is nothing in the UN Charter, nor any subsequent UN resolutions, that directly supports the notion that preemptive war is legal under international law. Moreover, legal scholars questioned whether preemptive war was beyond the Constitutional authority conferred to the federal government.

In any event, the Bush Administration undertook military operations in Iraq and Afghanistan, backed by the authority of the AUMF in the face of Democratic (and some Republican) opposition. Of course, much of this came afterDemocrats had joined their Republican counterparts in approving the AUMF–think Hilary’s infamous “if I knew then what I know now” speech.

Now, several years later, the Obama Administration is in office, in large part because of its Change and Hope campaign. The thrust of the campaign was to offer Americans an alternative to the Bush years, specifically on the issue of foreign policy (though issues with the economy were coming into play in the waning months of the campaign). However, increased drone strikes, military intervention in Libya and Yemen, and questions concerning when U.S. military intervention in Afghanistan will cease have called into question whether Obama has fulfilled his 2008 promise to deviate from the Bush Doctrine. And now we come to the recently released White Paper.

Benjamin Wittes and Susan Hennessey at Lawfare attempt to minimize the White Paper and its implications in a ‘oh, nothing to see here folks, just move along’ tone:

The White Paper, however, had been drafted, and while it was never released publicly, it was apparently given to people on the Hill. Like Holder’s speech, it tracks the OLC memo—and it goes into somewhat more detail on certain points than Holder did. But here’s the thing: It’s the same argument. Nobody who has read and understood Holder’s Northwestern speech can reasonably be surprised by anything about this document. The argument is old hat—and we have known for almost a year that this was the administration’s view.

In other words, media reports are over-reactionary not because of some misreading of the White Paper, but because the White Paper simply restates the Administration’s position. Oh, well that’s comforting. Wittes and Hennessey do take issue with one substantive media criticism of the White Paper:

The more responsible reporters have been reasonably careful. Michael Isikoff’s original story for NBC News calls the document a “confidential Justice Department memo,” and a “confidential Justice Department ‘white paper.’” Isikoff goes one to say that, “Although not an official legal memo, the white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s Office of Legal Counsel.” Isikoff then says, rather more tendentiously, that the document authorizes the killing of U.S. citizens who are top operational Al Qaeda figures “even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.” This latter point is, to put it mildly, a stretch. (emphasis added).

Is it? Here is the relevant language of the White Paper:

Certain aspects of this legal framework require additional explication. First, the condition that an operation leader present an “imminent”threat of violent attach against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interest will take place in the immediate future. Given the nature of, for example, the terrorist attacks on September 11, in which civilian airliners were hijacked to strike the World Trade Center and the Pentagon, this definition of imminence which would require the United States to refrain from action until preparation for an attack are concluded would not allow the United States sufficient time to defend itself. The defensive options available to the United States may be reduced or eliminated if al-Qa’ida operatives disappear and cannot be found when the time of their attack approaches. Consequently, with respect to al-Qa’ida leaders who are continually planning attacks, the United States is likely to have only a limited window of opportunity within which to defend Americans in a manner that has both a high likelihood of success and sufficiently reduces the probabilities of civilian casualties . . .

By its nature, therefore, the threat posed by al-Qa’ida and its associated forces demands a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat, making the use of force appropriate. In this context, imminence must incorporate considerations of the relevant window of opportunity, the possibility of reducing collateral damage to civilians, and the likelihood of heading off future disastrous attacks on Americans . . .

An individual poses an “imminent threat” of violent attack against the United States where the operational leader of al-Qa’ida or an associated force and is personally and continually involved in planning terrorist attacks against the United States. (citations omitted) (emphasis added).

There are two issues here. First, what constitutes continual involvement in planning is a little vague–an operational leader or an associated force. The issue of what constitutes an associated force was threshed out in Hamlily v. Obama 616 F.Supp. 2d 63 (D.D.C. 2009). There, the government argued that associated forces should include those:

[I]ndividuals who “substantially supported” any of those organizations.

Although the Court rejected the government’s argument, it stated the following:

Despite the Court’s rejection of “substantial support” as an independent basis for detention, the concept may play a role under the functional test used to determine who is a “part of” a covered organization . . .

For example, if the evidence demonstrates that an individual did not identify himself as a member, but undertook certain tasks within the command structure-20-or rendered frequent substantive assistance to al Qaeda, whether operational, financial or otherwise, then a court might conclude that he was a “part of” the organization. Of course, such determinations are highly fact-intensive and will be made on an individualized, case-by-case basis, applying the conclusions reflected in this decision.

In other words, the Court offers no working definition of associated force in its opinion, and instead, defers to a later fact finder to determine whether someone offering substantial support to a terrorist organization is an “associated force.” However, the Hamlily decision dealt with the issue of detaining persons, where a fact finder can, after a governmental decision is made, make a determination on the facts and offer the accused relief. Conversely, in the context of the White Paper and drone strikes, there is little a fact finder can do after the government makes its determination in the way of relief. Moreover, it is disconcerting that the government is likely to make hasty decisions regarding whether a person is an associated force or just offering support. As the White Paper states (and is quoted above):

[T]he United States is likely to have only a limited window of opportunity within which to defend Americans in a manner that has both a high likelihood of success . . .

The second issue that is of concerns brings into the background of the AUMF and the Bush Administration. The White Paper explicitly relies on the AUMF for authority:

The United States is in armed conflict with al-Qa’ida and its associated forces, and Congress has authorized the President to use all necessary and appropriate force against those entities. In addition to the authority arising from the AUMF, the President’s use of force against al-Q’aida and associated forces is lawful under other principles of U.S. and international law, including the President’s constitutional responsibility to protect the nation and the inherent right to national self defense recognized in international law.

The troubling part about imminence is this reference to the AUMF. The AUMF, as noted above, was used by the Bush Administration as Congressional authorization to conduct preemptive war and strikes. Moreover, the White Paper is discussing imminent threats–that is, threats that are to happen but have not yet happened. Clearly, the Paper is discussing preemptive strikes. What is troubling about that preemption is not just that it is authorized, but that the government has broad discretion to make the determination as to what constitutes imminence. Again, this goes back to the planning of attacks. How far along does the planning have to proceed to constitute an imminent threat? Is there a test for likelihood the plan will succeed? Even be implemented? Is there any distinction to be drawn between a well-funded and capable terror cell, and a basement full of pissed off locals letting off steam with no real intent or capability to pull off an attack?

Given the recent missteps of the Bush Administration vis-a-vis Iraq’s WMD program, one cannot suggest that the government will act on the best intelligence available and expect the public to be put at ease. The White Paper suggest (if not overtly states) that the Obama Administration can, according to the DOJ, conduct military operations abroad with the same unfettered discretion that the Bush Administration did, and in fact, adopting the Bush Doctrine.

Official photographic portrait of US President Barack Obama (born 4 August 1961; assumed office 20 January 2009) (Photo credit: Wikipedia)

Throughout Obama Administration’s four years, there has been a lot of back forth between the left and the right about who is to blame for the current economic situation, U.S. foreign policy (particularly regarding Iraq and Afghanistan), and so forth. The left believes that the Administration inherited economic and foreign policy messes too large to straighten out in four years. The right believes that the Administration is not owning up to its own policy missteps and is constantly heaping blame onto George W. Bush. Moreover, the right accuses the media acting as a mouthpiece for the White House in apologizing for the Administration, where it had vilified the previous Administration.

To be sure, the change in leadership in D.C. in 2008 created a bit of a political quandary for leaders of both parties. In base generalities, Republicans had to assume the position of the Democrats from just a few years ago, and vice versa. Democrats, previously bent against the war, now had to defend the continuation of U.S. operations in Iraq and Afghanistan, as well as new combat operations in Libya, and, most importantly, increased use of drone strikes.

Across the aisle, Republicans, trumpeters of U.S. foreign policy under the guise of a “War on Terror,” now had to question the logic of U.S intervention in the Middle East, namely Libya, while questioning the U.S. exit strategy from Iraq and Afghanistan. This not to say that the leadership change created incongruancies in the arguments offered by Republicans and Democrats, but it did show the political game being played vis-a-vis foreign policy.

In a piece of the USA Today examines that game a little further; more accurately, it questions how then Senator Obama and the rest of the Democratic leadership would had responded had the DOJ drone memo under the previous administration.

The leak of a document on the Obama administration’s drone strike policy has some people in Washington playing the “what-if” game.

What if President George W. Bush’s administration had written a such a document on the legality of drone attacks, even on U.S. citizens working with alleged terrorists overseas?

Former Bush press secretary Ari Fleischer tweeted: “Good thing (Department of Justice) drone memo didn’t come out in 2008. Candidate Obama would never have put up with stuff like that going on.”

Aides to President Obama said he is continuing the war on terrorism, authorized by Congress shortly after the attacks of Sept. 11, 2001.

Obama “takes the absolute necessity to conduct our war against al Qaeda and its affiliates in a way that’s consistent with the Constitution and our laws very seriously,” said White House press secretary Jay Carney.

The spokesman added that “it is a matter of fact that al Qaeda is in a state of war against us and that senior leaders, operational leaders of al Qaeda are continually plotting to attack the United States, plotting to kill American citizens as they did most horrifically on September 11, 2001.”

“Uncomfortable with the Obama administration’s use of deadly drones, a growing number in Congress is looking to limit America’s authority to kill “suspected terrorists, even U.S. citizens.” The Democratic-led outcry was emboldened by the revelation in a newly surfaced Justice Department memo that shows drones can strike against a wider range of threats, with less evidence, than previously believed.

“The drone program, which has been used from Pakistan across the Middle East and into North Africa to find and kill an unknown number of “suspected terrorists,” is expected to be a top topic of debate when the Senate Intelligence Committee grills John Brennan, the White House’s pick for CIA chief, at a hearing.”

It is an interesting question not because it somehow vindicates Republicans and excoriates Democrats regarding foreign policy. Rather, it sums up the contrast of the two parties’ respective positions pre-and post-2008, and highlights how the Obama Administration has with little variance from the Bush Doctrine. Certainly, the intervention in Libya was under the auspices of NATO, which implicitly had more international support than the Iraq War. However, drone strikes persist, Gitmo remains open, the National Defense Authoriation Act (NDAA) was reauthorized (again) as was the Patriot Act, Rendition is still carried out, invocation of Executive Privilege vis-a-vis Fast and Furious, and so on.

Obviously the economy is a pressing domestic matter, which will dim a bit the spotlight on foreign policy issues. However, dim is not the same thing as off, and the media has done little to hold the Administration accountable or at least acknowledge the similarities between the Bush and Obama Administrations.

The White House and its critics faced off over the legality of drone strikes to kill U.S. citizens abroad, in a likely preview of arguments that will be raised during this week’s confirmation hearing for President Barack Obama’s choice to head the CIA.

The disclosure of an unclassified Justice Department memo laying out the legal framework for the U.S. government’s ability to attack its own citizens drew criticism from civil liberties groups. But the White House strongly defended the controversial policy as legal and ethical.

The unclassified memo, first obtained by NBC News, argues that drone strikes are justified under American law if a targeted U.S. citizen had “recently” been involved in “activities” posing a possible threat and provided that there is no evidence suggesting the individual “renounced or abandoned” such activities.

White House spokesman Jay Carney defended current U.S. drone policy, saying they are used to mitigate threats, stop plots, prevent future attacks and “save American lives.”

“These strikes are legal, they are ethical and they are wise,” he said.

Civil liberties groups expressed concerns, while U.S. lawmakers called on the White House to release more of its legal underpinning for the assertion that the president has the power to kill U.S. citizens abroad without trial.

The U.S. government has dramatically increased its use of drone aircraft abroad in recent years to target al Qaeda figures in far-flung places from Pakistan to Yemen.

“My initial reaction is that the paper only underscores the irresponsible extravagance of the government’s central claim,” Jameel Jaffer of the American Civil Liberties Union wrote on the ACLU’s blog. “Even if the Obama administration is convinced of its own fundamental trustworthiness, the power this white paper sets out will be available to every future president.”

The use of drones figures to be a prime topic for White House counterterrorism chief John Brennan when he faces the Senate Intelligence Committee in a confirmation hearing on his nomination to become CIA director.

The document was disclosed as a bipartisan group of U.S. senators called on the Obama administration to release to Congress “any and all” legal opinions laying out the government’s understanding of what legal powers the president has to authorize the killing of American citizens.

The senators who signed the letter, including members of the Senate Intelligence Committee, said the administration’s cooperation would “help avoid an unnecessary confrontation that could affect the Senate’s consideration of nominees for national security purposes.”

One national security official said the leak of the Justice Department memo may have been timed to blunt such congressional demands for the release of additional documents.

Senator Dianne Feinstein, the Democrat who chairs the Intelligence Committee, said in a statement that she had been calling on the administration to release legal analyses related to the use of drones for more than a year.

Feinstein said the document obtained by NBC had been given to congressional committees last June on a confidential basis, and that her committee is seeking additional documents, which are believed to remain classified.

Attorney General Eric Holder said he was concerned that the release of more documents could put sources and operations at risk.

“We’ll have to look at this and see how, what it is we want to do with these memos,” Holder said.

There is “a real concern to reveal sources, to potentially reveal sources and methods and put at risk the very mechanisms that we use to try to keep people safe, which is our primary responsibility,” he said at a news conference.

‘IMMINENT THREAT’

In the unclassified Justice Department paper, the authors laid out three conditions that the executive branch should meet before a drone strike is ordered.

A top U.S. official must determine that the targeted person “poses an imminent threat of violent attack against the United States,” cannot be captured, and that the strike “would be conducted in a manner consistent with applicable law of war principles,” the department said.

The memo is drawing new attention to the 2011 strike that killed U.S.-born Anwar al-Awlaki, who U.S. investigators say was a leader of al Qaeda’s Yemen-based affiliate and linked to a botched plot to blow up a U.S. airliner with a bomb hidden in a man’s underwear on Christmas Day 2009.

Targeted killings carried out by remotely piloted unmanned aircraft are controversial because of the risks to nearby civilians and because of their increasing frequency. The United Nations recently launched an investigation into their use.

Hina Shamsi of the ACLU, which has sued for more information on the drone program, called the memo “profoundly disturbing” and “a stunning overreach of executive authority.” Hina Shamsi of the ACLU, which has sued for more information on the drone program, called the memo “profoundly disturbing” and “a stunning overreach of executive authority.”

Shamsi, head of the ACLU’s National Security Project, in a statement called on the Obama administration to release what she said was a 50-page classified legal document on which the 16-page summary is based.

“Among other things, we need to know if the limits the executive purports to impose on its killing authority are as loosely defined as in this summary, because if they are, they ultimately mean little,” she said.

The ACLU will also file court papers seeking to block government efforts to dismiss the group’s lawsuit challenging the 2011 killing of Awlaki and two other Americans in Yemen, the statement said.

Former U.N. ambassador John Bolton says President Obama’s drone program “appears to be consistent with the policies of the Bush administration.”

“If you assess the threat of international terrorism to be the equivalent of war, then you’re in the ‘Law of War’ paradigm. This is not like robbing the local 7-Eleven, where you resort to the law enforcement paradigm,” said Bolton, who added thatArticle II | U.S. Constitution gives this power to the president in a time of war.” [Except in those areas in which the Constitution places authority in Congress.

The American Civil Liberties Union (ACLU) said the white paper was a “pretty remarkable document”.

Jameel Jaffer, deputy legal director of the ACLU, said in a blog postthe paper revealed “both the recklessness of the government’s central claim and the deficiencies in the government’s defense” of its drone strike policy.

“This sweeping authority is said to exist even if the threat presented isn’t imminent in any ordinary sense of that word, even if the target has never been charged with a crime or informed of the allegations against him, and even if the target is not located anywhere near an actual battlefield,” Mr Jaffer added.

Much like the torture memos haunted the Bush Administration, it is likely this DOJ memo will leave the Obama Administration open to a bevy of criticism for how it conducts its foreign policy. The Administration has already come under fire for its use of drone strikes.

The central justification for US drone strikes is that they are necessary to make the US “safer” by disrupting militant activity. Proponents argue that they are an effective, accurate, and precise tool to that end. However, serious questions have been raised about the accuracy and efficacy of strikes, and the publicly available evidence that they have made the US safer overall is ambiguous at best. Considerable costs also have been documented. The under-accounted-for harm to civilians–injuries, killings, and broad impacts on daily life, education, and mental health–was analyzed in detail and must be factored as a severe cost of the US program.[1] In addition, it is clear that US strikes in Pakistan foster anti-American sentiment and undermine US credibility not only in Pakistan but throughout the region.

There is strong evidence to suggest that US drone strikes have facilitated recruitment to violent non-state armed groups, and motivate attacks against both US military and civilian targets.Further, current US targeted killing and drone strike practices may set dangerous global legal precedents, erode the rule of law, and facilitate recourse to lethal force.

A significant rethinking of current policies, in light of all available evidence, the concerns of various stakeholders, and short and long-term costs and benefits, is long overdue.

The US government and advocates for US targeted killing policies put much emphasis on the precision of drone strikes, and their effectiveness in combating “terrorism” and making the US safer by hampering the operational capacity of militants. Indeed, as Peter Bergen and Jennifer Rowland have argued, “CIAdrone attacks in Pakistan have undoubtedly hindered some of the Taliban’s operations, killed hundreds of their low-level fighters, and a number of their top commanders.”[2] The “terrorizing presence” of drones overhead has also reportedly disrupted the ability of armed non-state actors to gather and organize within Waziristan.[3]

First, concerns have been raised about the technical accuracy of strikes.[5] More significantly, however, is the fact that the accuracy of a drone strike fundamentally hinges on the accuracy of the intelligence on which the targeting is premised. That intelligence has often been questioned. An anonymous US official cited by Tom Junod in his August 2012 Esquire article admitted that “you get information from intelligence channels and you don’t know how reliable it is or who the source was. The intelligence services have criteria, but most of the time the people making the decision have no idea what those criteria are.”[6]

Targeting decisions appear to be based on information obtained from assets and informants on the ground, signals intelligence, and aerial drone surveillance.[7] As Jane Mayer notes, “the precise video footage makes it much easier to identify targets. But the strikes are only as accurate as the intelligence that goes into them.”[8] Bob Woodward explains in Obama’s Wars, “without the local informants…there would not be good signals intelligence so that the drones know where to target.”[9]

Public information about the US experience in Afghanistan and Iraq, as well as in the context of rendition and the Guantanamo detentions, creates cause for concern about the reliability of the intelligence that informs lethal targeting decisions. In April 2011, for example, US forces used a predator drone to fire upon and kill two American soldiers in Afghanistan who had apparently been mistaken for Taliban fighters.[10] In September 2010, US special forces bombed the convoy of Zabet Amanullah, a candidate in parliamentary elections, killing him along with nine fellow election workers; US forces reportedly mistakenly believed Amanullah to be a member of the Taliban.[11] In both Afghanistan and Iraq, there have been documented cases of opportunistic informants providing false tips to settle scores, advance sectarian or political agendas, or to obtain financial reward.[12]

For example, in Guantanamo, a reported 86 percent of those imprisoned were turned over to coalition forces in response to a bounty offered by the US.[13] Pakistani and Afghan villagers reported the bounty amount was “enough money to take care of your family, your village, your tribe for the rest of your life.”[14] For several years, the US government regularly referred to Guantanamo detainees as “the worst of the worst.”[15]Classified as “enemy combatants,” prisoners remained in US custody for significant periods of time, often years, and often without being charged. Yet of the 779 detainees held at Guantanamo Bay since 2002, 603 have now been released.[16] According to the US government itself, 92% of prisoners in the facility were never Al Qaeda fighters.[17]

What does this mean in the targeted killing context? Human rights lawyer Clive Stafford Smith of Reprieve articulates the implications:

Just as with Guantanamo Bay, the CIA is paying bounties to those who will identify “terrorists.” Five thousand dollars is an enormous sum for a Waziri informant, translating to perhaps £250,000 in London terms. The informant has a calculation to make: is it safer to place a GPS tag on the car of a truly dangerous terrorist, or to call down death on a Nobody (with the beginnings of a beard), reporting that he is a militant? Too many “militants” are just young men with stubble.[18]

Tom Junod has similarly argued:

The US invaded Iraq on the pretext of evidence that was fallacious, if not dishonest. The US detained the “worst of the worst” in Guantánamo for years before releasing six hundred of them, uncharged, which amounts to the admission of a terrible mistake. The Lethal Presidency is making decisions to kill based on intelligence from the same sources. These decisions are final, and no one will ever be let go. Six hundred men. What if they had never been detained? What if, under the precepts of the Lethal Presidency, they had simply been killed?[19]

The trend of the US claiming to have targeted or killed the same high-value target multiple times also serves to undermine assertions about the accuracy of US intelligence. For example, although proclaimed dead in January 2009[20] and again in September 2009,[21] Ilyas Kashmiri, the alleged head of Al Qaeda’s paramilitary operations in Pakistan, gave an interview to a Pakistani journalist in October that same year.[22] Our research team spoke with a survivor of the September 2009 strike in which Kashmiri was initially reported to have died. That survivor, Sadaullah Wazir, who was 15 years old or younger at the time of the strike, lost both his legs and an eye in the strike.[23] Kashmiri was again proclaimed dead in June 2011,[24] but even this account has been contested.[25] Similarly, Abu Yahya Al-Libi, declared to be Al Qaeda’s #2 or #3, was thought killed in a December 2009 drone strike,[26] only to be reportedly killed more than three years later in June 2012.[27] Michael Hastings of Rolling Stone has also traced the multiple US attempts to strike the TTP’s former leader Baitullah Mehsud:

A year earlier, a drone strike killed Baitullah Mehsud, the head of the Pakistani Taliban, while he was visiting his father-in-law; his wife was vaporized along with him. But the US had already tried four times to assassinate Mehsud with drones, killing dozens of civilians in the failed attempts. One of the missed strikes, according to a human rights group, killed 35 people, including nine civilians, with reports that flying shrapnel killed an eight-year-old boy while he was sleeping. Another blown strike, in June 2009, took out 45 civilians, according to credible press reports.[28]

Second,the vast majority of the ‘militants’ targeted have been low-level insurgents, killed in circumstances where there is little or no public evidence that they had the means or access to pose a serious threat to the US. In 2011, a White House evaluative report on drone strikes, in fact, found that the CIA was “primarily killing low-level militants in its drone strikes.”[29] Journalist Adam Entous reached a similar conclusion in a May 2010 Reuters piece: based on conversations with unnamed US officials, he noted that only 14 top-tier leaders of Al Qaeda, the Taliban, or other militant groups and two dozen high-to-mid-level leaders had been killed, with the remaining “90 percent by some measure” of those militant deaths consisting of “lower-level fighters.”[30] In September 2012, Peter Bergen and Megan Braun, reporting New American Foundation data, stated that since 2004, 49 “militant leaders” had been killed in strikes (accounting for 2% of all drone killings); the rest were largely “low-level combatants.”[31]

Strikes that kill low-level fighters are of dubious value to US security interests. This is particularly true in light of revelations that the US counts all killed adult males as “combatants,” absent exonerating evidence.[32] In other words, claims that drones have killed hundreds of low-level fighters may well mask the deaths of civilians.

Third, analysts have raised questions about the effectiveness of “decapitation” strategies (the targeted killing or capture of an organization’s high-level leaders and mobilizers in order to incapacitate the entire group). As RAND analyst Bruce Hoffman observed in 2004, Al Qaeda is a “nimble, flexible and adaptive entity.”[33] The frequency with which the US claims to have killed the number two of the various militant groups operating in North Waziristan attests to how readily leaders have been replaced. Indeed, former director of National Intelligence Dennis Blair noted in explaining the ineffectiveness of drones, “[Al] Qaeda officials who are killed by drones will be replaced. The group’s structure will survive and it will still be able to inspire, finance and train individuals and teams to kill Americans.”[34]

Fourth, while the drone program may have inhibited militant organizing in certain areas, it may have also effected a shift in the location of militant organizing activity. Douglas Lute, Obama’s former Special Assistant and Senior Coordinator for Afghanistan and Pakistan, stated, “I don’t think anybody believes that we’ll have much more than a disruption effect on Al Qaeda . . . and its associates.”[35] With drone strikes focused on Waziristan, some Al Qaeda and Taliban leaders have moved to other parts of Pakistan, where they have reportedly continued to operate. Osama bin Laden was found hiding in Abbottabad; 9/11 architect Khaled Sheikh Muhammad was captured in Rawalpindi;[36] suspected militant Abu Zubaydah was apprehended in Faisalabad;[37] and Mullah Omar has been widely rumored to be in Karachi.[38]US Drone Strike Policies Foment Anti-American Sentiment and May Aid Recruitment to Armed Non-State Actors

Admiral Mike Mullen has observed,

Each time an errant bomb or a bomb accurately aimed but against the wrong target kills or hurts civilians, we risk setting out strategy back months, if not years. Despite the fact that the Taliban kill and maim far more than we do, civilian casualty incidents such as those we’ve recently seen in Afghanistan will hurt us more in the long run than any tactical success we may achieve against the enemy.[39]

It is clear from polling and our research team’s interviews that drone strikes breed resentment and discontent toward the US, and there is evidence to suggest that the strikes have aided militant recruitment and motivated terrorist activity.

US drone strikes are extremely unpopular in Pakistan. A 2012 poll by the Pew Research Center’s Global Attitude project found that only 17% of Pakistanis supported drone strikes. And remarkably, among those who professed to know a lot or a little about drones, 97% considered drone strikes bad policy.[40] As numerous analysts have noted, “[i]f the price of the drone campaign that increasingly kills only low-level Taliban is alienating 180 million Pakistanis–that is too high a price to pay.”[41]

The Waziris interviewed for this report almost uniformly reported having neutral or in some instances positive views of the US before the advent of the drone campaign. One 18-year-old, for example, admitted, “[f]rankly speaking, before the drone attacks, I didn’t know anything about a country called America. I didn’t know where it was or its role in international affairs.”[42] But the strikes now foster the development of strongly negative views toward the US. Another interviewee explained: “Before the drone attacks, we didn’t know [anything] about America. Now everybody has come to understand and know about America . . . . Almost all people hate America.”[43] Noor Khan, whose father, Daud Khan, a respected community leader, was killed when a drone struck the March 17, 2011 jirga over which he presided, remarked that “America on one hand claims that it wants to bring peace to the world and it wants to bring education. But look at them, what they are doing?”[44] One man, who has lost relatives in drone strikes, expressed his deep-seated anger toward the US, declaring that “we won’t forget our blood, for two hundred, two thousand, five thousand years—we will take our revenge for these drone attacks.”[45] A Waziri who lost his younger brother in a strike stated that there would be revenge: “Blood for blood. . . . All I want to say to them is . . . why are you killing innocent people like us that have no concern with you?”[46]

A teenage victim of a drone strike commented: “America is 15,000 kilometers away from us; God knows what they want from us. We are not rich . . . . We don’t have as much food as they do. God knows what they want from us.”[47] Unable to find any other explanation for why US strikes have struck innocent people in their community, some Waziris believe that the US actively seeks to kill them simply for being Muslims, viewing the drone campaign as a part of a religious crusade against Islam.[48]

Recognizing the danger posed by a campaign that breeds such hostility, more than two dozen US congressmen penned a letter to President Obama in June 2012 that described drones as “faceless ambassadors that cause civilian deaths, and are frequently the only direct contact with Americans that targeted communities have.”[49]

Many of the journalists, NGO and humanitarian workers, medical professionals, and Pakistani governmental officials with whom we spoke expressed their belief that, on balance, drone strikes likely increase terrorism. Syed Akhunzada Chittan, for example, a parliamentarian from North Waziristan, expressed his conviction that “for every militant killed,” many more are born.[50] In another interview, a Pakistani professional told us that a professional school classmate had joined the Taliban after a drone strike killed a friend of his.[51] Noor Behram is a Waziri-based journalist who has spent years photographing and interviewing victims of drone strikes. Having personally witnessed the immediate aftermath of numerous strikes, he relates: “When people are out there picking up body parts after a drone strike, it would be very easy to convince those people to fight against America.”[52]

Numerous policy analysts, officials, and independent observers have come to similar conclusions. David Kilcullen, a former advisor to US General David Petraeus, has stated that, “every one of these dead noncombatants represents an alienated family, a new desire for revenge, and more recruits for a militant movement that has grown exponentially even as drone strikes have increased.”[53]Der Spiegel has also reported that in Pakistan “militants profit in a gruesome way from the drone missions. After each attack in which innocent civilians die, they win over some of the relatives as supporters—with a few even volunteering for suicide attacks.”[54] As a May 2012 New York Times article succinctly put it, “[d]rones have replaced Guantánamo as the recruiting tool of choice for militants.”[55] Pakistani Ambassador to the US Sherry Rehman told CNN’s Christiane Amanpour in a recent interview that the drone program “radicalizes foot soldiers, tribes, and entire villages in our region,” and that “[w]e honestly feel that there are better ways now of eliminating Al Qaeda.”[56] It is also important to note that similar counter-productive effects have been noted in Yemen.[57]

While quantitative data is limited, one study, in June 2012 by the Middle East Policy Council, identified a correlation between drone strikes and terrorist attacks in the years 2004-2009. That study found it “probable that drone strikes provide motivation for retaliation, and that there is a substantive relationship between the increasing number of drone strikes and the increasing number of retaliation attacks.”[58] A July 2010 study by the New America Foundation revealed that almost six in ten residents of the Federally Administered Tribal Areas (FATA) now believe that suicide attacks are often or sometimes justified against the US military,[59] although a July 2012 journalistic assessment by Bergen and Rowland suggests that drone strikes may have contributed to reduced suicide attacks in Pakistan in 2010-2011.[60]

Indeed, US drone strikes have been explicitly referred to as a motive for a number of specific planned or implemented terrorist attacks. For instance, a suicide bomber who targeted a CIA compound in Khost, Afghanistan identified drones as his motivation, announcing that “[t]his [suicide] attack will be the first of the revenge operations against the Americans and their drone teams outside the Pakistani borders.”[61] Faisal Shahzad, who allegedly attempted to detonate a car bomb in Times Square, viewed his planned attack as retaliation for several US policies, including drone strikes.[62] In addition, Najibullah Zazi, an Afghan who allegedly plotted to attack New York’s subway system was “in part, motivated by drone strikes in [his] ancestral homeland[].”[63] Similarly, a group responsible for the bombing of a Pakistani police academy in early 2009 cited the collaboration of Pakistani authorities with the US drone campaign.[64] It is also clear that some US officials themselves consider that drone strikes may influence the likelihood of terrorist activity in the US. A June 2012 deposition suggests, at least, that the New York City Police Department has monitored conversations involving individuals from “countries of concern”[65] following and about drone strikes,[66] to “find those people that were radicalized towards violence.”[67]

Those we interviewed in Pakistan emphasized their belief that enmity toward the US stems largely from particular US rights-violating post-9/11 policies, and could be reversed if the US changed course. Many expressed hope for reconciliation with the US, for good relations with the American people, and aspirations for a peaceful future. A victim of the March 17, 2011 jirga strike, for example, stated: “We don’t have any revenge or anything else to take from America if they stop the drone attacks.”[68] Many interviewees repeatedly implored our research team to ask the US government to stop or fundamentally change drone strike policies,[69] and instead assist their communities through, for example, investments in health and education infrastructure.[70]

Drones Undermine US Credibility in Pakistan and Throughout the Region

Despite the vast foreign aid the US has invested in Pakistan, a 2012 poll by the Pew Research Center’s Global Attitude project found that 74% of Pakistanis consider the US an enemy, up from 64% three years ago.[71] Only 45% of Pakistanis felt it important to improve relations with the US, down from 60% the previous year, and fewer support cooperation or even receiving aid from the US.[72]

The growing unpopularity of the US in Pakistan weakens the countries’ bilateral relationship, makes it more difficult for Pakistani political leaders to work collaboratively with the US, and risks undermining Pakistani democracy and development. The deterioration of the Pakistani-US bilateral relationship may also place US security at risk.

Dennis Blair, former Director of National Intelligence, described how unilateral American drone attacks in Pakistan are eroding US “influence and damaging our ability to work with Pakistan to achieve other important security objectives like eliminating Taliban sanctuaries, encouraging Indian-Pakistani dialogue, and making Pakistan’s nuclear arsenal more secure.”[73] Cameron Munter, who announced his early resignation as US Ambassador to Pakistan in May 2012,[74] reportedly revealed to colleagues that he “didn’t realize his main job was to kill people.”[75] In previous interviews, he criticized the US use of drones, arguing that the attacks need to be more “judicious.”[76] Although Secretary of State Hilary Clinton strongly supports drone strikes, she reportedly also has “complained to colleagues about the drones-only approach at Situation Room meetings.”[77] The New York Times reported in May 2012, “some officials felt the urgency of counterterrorism strikes was crowding out consideration of a broader strategy against radicalization.”[78]

The focus on drones also risks undermining Pakistan’s development by incentivizing undemocratic decision-making and fostering instability. In 2009, Anne Patterson, US Ambassador to Pakistan, discussed the risks of the US drone strategy in a cable sent to the Department of State. She noted, “Increased unilateral operations in these areas risk destabilizing the Pakistani state, alienating both the civilian government and military leadership, and provoking a broader governance crisis within Pakistan without finally achieving the goal [of eliminating the Al Qaeda and Taliban leadership].”[79] Pakistan High Commissioner to the United Kingdom Wajid Shamsul Hasan told The Bureau of Investigative Journalism (TBIJ):

What has been the whole outcome of these drone attacks is, that you have rather directly or indirectly contributed to destabilizing or undermining the democratic government. Because people really make fun of the democratic government–when you pass a resolution against drone attacks in the parliament, and nothing happens. The Americans don’t listen to you, and they continue to violate your territory.[80]

The US strikes have also contributed to the delegitimization of NGOs that are perceived as Western, or that receive US aid, including those providing much-needed services, such as access to water and education, and those administering the polio vaccine; this perception has been exploited by Taliban forces.[81]

The significant global opposition to drone strikes also erodes US credibility in the international community. In 17 of the 20 countries polled by the Pew Global Attitudes Project, the majority of those surveyed disapproved of US drone attacks in countries like Pakistan, Somalia, and Yemen.[82] Widespread opposition spans the globe, from traditional European allies such as France (63% disapproval) and Germany (59% disapproval) to key Middle East states such as Egypt (89% disapproval) and Turkey (81% disapproval).[83] As with other unpopular American foreign policy engagements, including the invasion of Iraq and the practice of torture at Abu Ghraib and elsewhere, drone strikes weaken the standing of the US in the world, straining its relationships with allies, and making it more difficult for it to build multilateral alliances to tackle pressing global challenges.

US Targeted Killing and Drone Strike Practices May Establish Dangerous Precedents and Undermine the Rule of Law and US Democracy

The practices employed, and legal frameworks articulated, by the US today may set dangerous precedents for future engagements, including for other countries and armed non-state actors. We are in the midst of a significant period of drone proliferation, pushed forward on the one hand by governments and militaries, and on the other, by manufacturers seeking to expand markets and profit. Unchecked armed drone proliferation poses a threat to global stability, and, as more countries and non-state actors obtain access to the technology, the risk of US-style practices of cross-border targeted killing spreading are clear.

According to the US Government Accountability Office (GAO), “at least 76 countries” have acquired UAVs,[84] including China, Pakistan, Russia, and India.[85] China alone has 25 types of systems currently in development;[86] Iran, whose arsenal includes the “Ambassador of Death,”[87] is developing a drone with a range of more than 600 miles.[88] Recently, in an unconfirmed report, it was alleged that Israel used a drone to strike and kill in the territory of Egypt.[89] Reportedly, Iran has supplied the Assad regime with drones, which it has apparently already employed to conduct surveillance on the opposition.[90] Non-state organizations like Hezbollah have also entered the fray, reportedly deploying an Iranian-designed drone;[91] the Free Syria Army also reportedly recently built a small armed drone.[92] The GAO recently warned that “[t]he United States likely faces increasing risks as additional countries of concern and terrorist organizations acquire UAV technology.”[93] As Peter Singer of the Brookings Institution has observed:

I think of where the airplane was at the start of World War I: at first it was unarmed and limited to a handful of countries….Then it was armed and everywhere. That is the path we’re on.[94]

Drone manufacturers are heavily pushing their products internationally and into new markets,[95]and global spending on drones is expected to total more than $94 billion over the next decade.[96] Indeed, there “is not a single new manned combat aircraft under research and development at any major Western aerospace company, and the Air Force is training more operators of unmanned aerial systems than fighter and bomber pilots combined.”[97]

US manufacturers’ exports of drones have been limited to date because of export controls; however, significant pressure has been brought to bear on Congress, particularly by drone manufacturers, to loosen the export regime.[98] In September 2012, it was reported that the Pentagon had given approval for drone exports to 66 countries.[99] Representative Howard Berman (D- Los Angeles), ranking Democrat on the House Foreign Affairs Committee, recently announced that his committee would soon review drone sales, declaring that “it’s crazy for us to shut off sales in this area while other countries push ahead.”[100] The Wall Street Journal reported in July 2012 that the US plans to provide Kenya with eight hand-launched Raven drones, which, while currently unarmed, have sensors for pinpointing targets.[101] The drones are part of a military assistance package aimed at helping African partners combat Al Qaeda and al Shabaab ‘militants’ in Somalia.[102]

Executive Director of the Arms Control Association Daryl Kimball describes how “[t]he proliferation of this technology will mark a major shift in the way wars are waged,” warning that “[w]e need to be very careful about who gets this technology. It could come back to hurt us.”[103] John Brennan himself acknowledged that the US is “establishing precedent that other nations may follow.”[104]

The ways in which the US has used drones in the context of its targeted killing policies has facilitated an undermining of the constraints of democratic accountability, and rendered resort to lethal force easier and more attractive to policymakers. The decision to use military force must be subject to rigorous checks-and-balances; drones, however, have facilitated the use of killing as a convenient option that avoids the potential political fallout from US casualties and the challenges posed by detention. Senator Saxby Chambliss of Georgia, the top Republican on the Senate Intelligence Committee, stated: “[The Obama administration’s] policy is to take out high-value targets, versus capturing high-value targets. They are not going to advertise that, but that’s what they are doing.”[105]

While drone warfare represents but the newest chapter in ever-increasing military technological sophistication, “the distance between killer and killed, the asymmetry, the prospect of automation and, most of all, the minimization of pilot risk and political risk” render current practices particularly problematic.[106] As the technology develops, and as drones become increasingly autonomous, these concerns will likely continue to magnify.[107]

A combat veteran of Iraq explained why drones may alter the calculus of warfare: “there’s something important about putting your own sons and daughters at risk when you choose to wage war as a nation. We risk losing that flesh-and-blood investment if we go too far down this road.”[108] A 2011 British Defense Ministry study of drones raises these challenging questions:

If we remove the risk of loss from the decision-makers’ calculations when considering crisis management options, do we make the use of armed force more attractive? Will decision-makers resort to war as a policy option far sooner than previously?[109]

Peter Singer insightfully describes how these questions also affect democratic accountability: “when politicians can avoid the political consequences of the condolence letter—and the impact the military casualties have on voters and on the news media—they no longer treat the previously weighty matters of war and peace the same way…. [drones are] short-circuiting the decision-making process for what used to be the most important choice a democracy could make.”[110] Michael Hastings of Rolling Stone concludes that the “immediacy and secrecy of drones makes it easier than ever for leaders to unleash America’s military might–and harder than ever to evaluate the consequences of such clandestine attacks.”[111] In 1848, President Abraham Lincoln warned about the peril of granting such unrestrained power to the executive:

Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose and you allow him to make war at pleasure.[112]

With policymakers making critical decisions about US policy outside the publics view, and an utter lack of any real transparency and accountability,[113] the rule of law is undermined and a democratic deficit created. The US government has refused to explain adequately the legal basis for the strikes, as we discuss above in Chapter 4. In calling for more transparency regarding the legal basis for the program, former CIA director Michael V. Hayden stated: “democracies do not make war on the basis of legal memos locked in a D.O.J. safe.”[114]

The opaque position of the US government on civilian casualties is also emblematic of an accountability and democratic vacuum. Appendix C compares statements of US officials on drones since January 2011 with strike data as reported by TBIJ. The results reveal a pattern of dishonesty in public statements about drones.[115] For example, in June 2011, Deputy National Security Advisor John Brennan asserted that “there hasn’t been a single collateral death because of the exceptional proficiency, precision of the capabilities we’ve been able to develop.”[116] By this time, TBIJ had reported that at least 458 civilians had been killed, including 31-42 in the March 17 strike (documented earlier in this report) that had taken place less than three months prior.[117] While Brennan subsequently clarified that he only meant to suggest that the US had yet to find credible evidence of civilian casualties,[118]even this statement was later directly contradicted: in May 2012, it was reported that President Obama “got word” that the first strike he authorized on January 23, 2009 “had killed a number of innocent Pakistanis” on the very same day.[119]

In light of these concerns, author, political commentator, and former constitutional lawyer Glenn Greenwald pointedly asks, “if you believe the President should have the power to order people, including US citizens, executed with no due process and not even any checks or transparency, what power do you believe he shouldn’t have?”[120]

[5]See infra Chapter 1: Background and Context (noting questions about the technical precision of drones, including the problem of latency). In particular, see discussion of lawsuit concerning software summarized in note 31.

[11] Kate Clark, Afghanistan Analysts Network, The Takhar Attack: Targeted Killings and the Parallel Worlds of US Intelligence and Afghanistan (2011), available at http://aan-afghanistan.com/uploads/20110511KClark_Takhar-attack_final.pdf. US authorities contended that Muhammad Amin and Zabet Amanullah were the same person. Id. at 2. According to Clark, this assertion was demonstrated to be false when Amin was interviewed in Pakistan after the September 2, 2010 strike. Id.

[23] Interview with Sadaullah Wazir, in Islamabad, Pakistan (Feb. 29, 2012). Sadaullah was uncertain of his exact age; he told our research team that he believed his current age to be between 15 and 17. Id.

[39] Admiral Mike Mullen, Chairman of the Joint Chiefs of Staff, Remarks at the Kansas State University Landon Lecture Series, Kansas State University (Mar. 3, 2010), available athttp://www.jcs.mil/speech.aspx?id=1336.

[48] Interview with Waleed Shiraz (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012). Shiraz, a political science graduate who became disabled due to a drone attack, described what he believes motivated the US: “It is proven that America is working against Muslims, because every country it has waged a war against . . . is a Muslim nation.” Id. Fayaz Habib, a Waziri who lost his father in the March 17thjirga strike, told us: “It just seems that America wants to target the people of Wazirstan . . . not just the people of Wazirstan . . . but also in Pakistan and Iraq. They just want to target Muslims.” Interview with Khalil Khan, Noor Khan, and Imran Khan, in Islamabad, Pakistan (Feb. 26, 2012); see also Interview with Marwan Aleem (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012) (“The kalima shehada [the Islamic declaration of belief in the oneness of Allah]. . . is the reason that innocent people are being victimized. Because we are all Muslims, we are being victimized.”); Interview with Sameer Rahman (anonymized name) and Mahmood Muhammad (anonymized name), in Islamabad, Pakistan (Feb. 29, 2012).

[57] Ibrahim Mothana, How Drones Help Al Qaeda, N.Y. Times (June 13, 2012), http://www.nytimes.com/2012/06/14/opinion/how-drones-help-al-qaeda.html (“Drones are causing more and more Yemenis to hate America and join radical militants; they are not driven by ideology but rather by a sense of revenge and despair . . . . [R]ather than winning the hearts and minds of Yemeni civilians, America is alienating them by killing their relatives and friends. Indeed, the drone program is leading to the Talibanization of vast tribal areas and the radicalization of people who could otherwise be America’s allies in the fight against terrorism in Yemen.”); see also Sudarsan Raghavan, In Yemen, US Airstrikes Breed Anger, and Sympathy for al-Qaeda, Wash. Post (May 30, 2012), http://www.washingtonpost.com/world/middle_east/in-yemen-us-airstrikes-breed-anger-and-sympathy-for-al-qaeda/2012/05/29/gJQAUmKI0U_story.html (noting also that “hundreds of tribesmen have joined AQAP in the fight against the US-backed Yemeni government” and that strikes are “angering powerful tribes that could prevent AQAP from gaining strength”); Jeremy Scahill, Washington’s War in Yemen Backfires, Nation (Feb. 14, 2012), http://www.thenation.com/article/166265/washingtons-war-yemen-backfires# (“The US bombs and the Yemeni military shelling of Zinjibar have increased support for Ansar al Sharia, allowing it to fulfill its claim that it is a defender of the people in the face of an onslaught backed by America.”); Michelle Shephard, Drone Death in Yemen of an American Teenager, Toronto Star (Apr. 14, 2012), http://www.thestar.com/news/world/article/1161432–drone-death-in-yemen-of-an-american-teenager (attributing to Yemeni analysis Abdul Ghani al-Iryani the conclusion that the emergence of Ansar al Sharia resulted from “what they saw as American aggression”). For similar effects in other contexts, see generally David Jaeger, Esteban Klor, Sami Miaari & M. Daniele Paserman, The Struggle for Palestinian Hearts and Minds: Violence and Public Opinion in the Second Intifada (Nat’l Bureau of Econ. Research, Working Paper No. 13956, 2008), available athttp://www.nber.org/papers/w13956.pdf, as well as Seth G. Jones & Martin C. Libicki, RAND Corp., How Terrorist Groups End: Lessons for Countering al Qa’ida(2008), available at http://www.rand.org/pubs/monographs/2008/RAND_MG741-1.pdf, which posits that the “use of substantial US military power against terrorist groups also runs a significant risk of turning the local population against the government by killing civilians,” and, in evaluating quantitative historical data from 1968—2006 finds that “[a]gainst most terrorist groups . . . military force is usually too blunt an instrument.” Id. at xiv.

[58] Leila Hudson, Colin S. Owens & Matt Flannes, Drone Warfare: Blowback from the New American Way of War, Middle E. Pol’y Council, 122, 126 (June 15, 2012), available at http://www.mepc.org/journal/middle-east-policy-archives/drone-warfare-blowback-new-american-way-war; see also David A. Jaeger & Zahra Siddique, Are Drone Strikes Effective in Afghanistan and Pakistan? On the Dynamics of Violence between the United States and the Taliban 2 (Institute for the Study of Labor, Discussion Paper No. 6262, 2011), available at http://ftp.iza.org/dp6262.pdf (finding a strong, but balanced effect between vengeance attacks and deterrent effect, noting “a positive vengeance effect in the first week following a drone strike [in Pakistan and] a negative deterrent/incapacitation effect in the second week following a drone strike, when we examine the likelihood of a terrorist attack by the Taliban.”).

[60] Bergen & Rowland, supra note 689 (citing reduced numbers of suicide bombings in 2010 and 2011 and suggesting that “strikes may have contributed to a relative decrease in violence across Pakistan”).

[68] Interview with Ahmed Jan, in Islamabad, Pakistan (Feb. 26, 2012). Of course, as we observed earlier, some experiential victims do harbor animosity toward the US.

[69]See, e.g., Interview with Ahmed Jan, in Islamabad, Pakistan (Feb. 26, 2012) (“This is why we have come on this march to send this message across to the US to stop targeting us.”); Interview with Umar Ashraf (anonymized name), in Islamabad, Pakistan (Mar. 9, 2012) (“The first thing we want is for drones to stop.”); Interview with Firoz Ali Khan (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012)(“I would like to ask that the drone strikes stop. We are sick of them.”); Interview with Marwan Aleem (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012) (“Please stop these attacks.”). It should be noted that we spoke with some Pakistanis who, primarily due to their contempt of Taliban militants, supported drone strikes. As one Pakistani official who requested anonymity told our research team, “[s]ome people in South Waziristan who have suffered most at [the] hands of Taliban support drone strikes.” Interview with Pakistani official, in Peshawar, Pakistan (May 8, 2012).

[70]See, e.g., Interview with Waleed Shiraz (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012) (in light of effect of drones on his education, appealing for aid or grant to continue his studies); Interview with Najeeb Saaqib (anonymized name), in Islambad, Pakistan (Feb. 26, 2012) (“I think the government or international agencies should give proper facilities like education, health, electricity so that our people can also get educations and go to universities and change the thinking and [their] mindset.”).

[82] Pew Research Center, Global Opinion of Obama Slips, International Policies Faulted: Drone Strikes Widely Opposed (2012), available athttp://www.pewglobal.org/2012/06/13/global-opinion-of-obama-slips-international-policies-faulted/. The only exceptions were the United Kingdom, in which only a plurality, rather than a majority, opposed strikes (47 to 44% disapproval), and India and the US, in which there was greater support for drones than opposition (32 to 21% approval in India and 62 to 28% approval in the US). Id.

[104] John O. Brennan, Assistant to the President for Homeland Security and Terrorism, The Ethics and Efficacy of the President’s Counterterrorism Strategy, Address at the Woodrow Wilson International Center for Scholars (Apr. 30, 2012).

NACDL’s Domestic Drone Information Center aims to be a one-stop source of cutting-edge information on the proliferation of drones inside the United States. It collects news from leading publications across the nation; features a comprehensive listing of legislative developments; and contains sections devoted to relevant case law, government documents, scholarship, upcoming events, and data on drone usage. The Domestic Drone Information Center also aggregates existing material from other websites, making it a launching pad to additional information about domestic drones on the web.

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